Uk Employment Law Round Up: Disciplinary And More
Don’t Sack Saker?
In Sakar v West London Mental Health Trust the Court of Appeal has held that applying an informal misconduct procedure for minor offences, then subsequently dismissing for gross misconduct based on much the same facts, was ‘outside the range of reasonable responses’ so as to render the dismissal unfair.
In this case the Trust received several complaints alleging that Dr Sacker was ‘harassing and distressing’ staff. The Trust first used its informal ‘Fair Blame Policy’ but during the investigation it was alleged that Dr Sacker had been at it again; making an abusive telephone call and acting aggressively towards a security guard. The Trust then cranked it up a couple of notches and dismissed Dr Sacker for gross misconduct.
The Court of Appeal took the view that by initially invoking its informal Fair Blame Policy, the Trust evidently thought Dr Sacker’s conduct to be relatively minor; so to then dismiss him for much the same thing was unfair. The tribunal had not substituted its own view for that of the Trust on the seriousness of the later incidents (a big no-no).
The lesson of this case is that employers should be consistent in whether they adopt a formal or an informal procedure to deal with misconduct. If in doubt, then pending the outcome of an investigation, treat it as a formal matter (which can then be down-graded if appropriate). On this occasion, sacking Saker was not a good move.
A Cross to bear?
The 2003 Employment Equality (Religion or Belief) Regulations made it unlawful to discriminate against someone at work by reason of their religious belief. In Eweida v British Airways a member of BA’s cabin crew claimed that it was unlawful for the company dress . code to forbid her from wearing a visible cross with her uniform.
This went all the way to the Court of Appeal which has held that the wearing a visible cross with the uniform is not unlawful. To be indirect discrimination, a group of employees must be put at a disadvantage. In this case however, only one employee was affected (given that it was accepted that wearing a cross was a matter of personal preference) Furthermore, where different groups in the workforce have conflicting views on a dress code, a blanket ban may in some cases be the only fair solution.
The 2003 regulations have had less impact in practice than may have been expected, and Eweida appears to be a common sense decision in favour of BA, which of course now has rather more serious problems to deal with given the pending strike by cabin crew.
When it’s not always enough to be sorry:
It is commonly known that ‘constructive’ unfair dismissal is where an employee resigns in response to a breach by the employer of the terms of employment. Frequently employees rely on the breach of the implied term of ‘trust and confidence’, if for example bullied at work. In Buckland v Bournemouth University the Court of Appeal has held that an employer cannot ‘cure’ a repudiatory breach before an employee decides to treat it as a constructive dismissal.
Professor Buckland passed 14 out of 16 students who had taken a re-sit exam. In response to criticisms of the marking made by another member of staff, the head of department arranged for the papers to be re-marked behind Prof Buckland’s back. He complained, and the University vindicated Prof Buckland following an investigation, however he resigned and claimed constructive dismissal.
The tribunal took the view that not consulting Prof Buckland before confirming the revised marks on exam papers was an act ‘calculated to destroy the relationship of trust and confidence between [Professor Buckland] and the University’ and held that he was constructively dismissed.
The Court of Appeal did not accept that the University’s decision, vindicating Prof Buckland, could ‘cure’ the earlier breach. The test for establishing constructive dismissal is objective and although reasonableness is a factor that tribunals may take into account in finding a repudiatory breach, it is not a legal requirement.
This seems to put employers in an impossible position. Even if an employer promptly investigates an alleged wrong, and either apologises or remedies it, this may not be enough. The Court of Appeal itself recognised this situation to be ‘capable of working injustice’, but felt that to decide otherwise would be to muddy the waters of contract law.
All briefed up for a disciplinary:
Legal representation at Disciplinary Hearings can be a right.
As you probably know, employees at disciplinary or grievance hearings have the statutory right to be accompanied by a colleague or a trade union representative.
In G v X School the Court of Appeal has recently held that Article 6 ECHR requires that a claimant should be afforded an opportunity to be legally represented at a disciplinary/appeal hearing where it was determinative of a right to practise a profession.
G was a teaching assistant at X school. An allegation was made that he had had sexual contact with a 15 year-old boy. The school governors conducted a disciplinary hearing and dismissed him, reporting his dismissal to the Independent Safeguarding Authority so that it could determine whether he should be placed on a ‘barred’ list of those unsuitable to work with children. G brought judicial review proceedings, challenging the governors’ decisions not to allow him legal representation at a disciplinary or appeal hearing.
The Court of Appeal found that:
(1) the right to practise a profession was a “civil right or obligation”,
(2) an ISA listing would fundamentally limit G’s ability to practise his profession and
(3) the school’s internal process would have a “substantial influence or effect” on the decision-making of the ISA.
G was therefore entitled to legal representation at the disciplinary and appeal hearings.
Therefore if you want to discipline and potentially dismiss for gross misconduct doctors, teachers, social workers or pretty much anyone who works with children or vulnerable people and whose job amounts to a ‘profession’ which they could lose the right to practice if dismissed, they now have the right to be accompanied by a legal representative.
About the Author
James Carmody is solicitor advising on UK employment law in Central London, EC1 (http://www.reculversolicitors.co.uk )
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